Khaki Justice
by LOYAL G. COMPTON
1
EVEN before they don uniform, most soldiers realize that two of their civilian prerogatives — being able to walk off a job and to talk back to the boss — will be transformed into the military crimes of desertion and disrespect to an officer. They learn of other rules a few days after their arrival at induction camp, where an officer is required to read and explain to them the forty-three punitive Articles of War. He makes no pretense, however, of explaining in detail the actual operations of the court-martial system, about which civilians know little more than that it exists.
The rudiments of military justice are contained in the Army’s only indispensable legal volume. This is the 352-page Manual for Courts-Martial, U. S. Army, 1928, containing the 122 Articles of War, their interpretation, rules of evidence and procedure, and a table of maximum punishments.
The foundation for military law is laid down in these Articles of War, which we inherited from Gustavus Adolphus, via the British. The Articles of War for the Navy, the Marine Corps, and the Coast Guard are similar to those of the Army, while the various feminine counterparts — the WAC, the WAVES, the Marine Corps Women’s Reserve, and the SPARS — are governed by rules patterned after those of the parent organizations. Offenses covered by these regulations, in addition to the purely military indiscretions, include those which are crimes by common-law standards and, if committed by civilians, would be punished by civil courts. The uniformed miscreant, however, has no recourse to civil courts; he forfeits that Constitutional franchise and other civil liberties when he takes the oath of induction.
The Constitution gives dominion to courtsmartial. Article I, Section 8, empowers Congress “to make rules for the government and regulation of the land and naval forces,” and the Fifth Amendment provides that “no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces. ...” The Supreme Court has recognized their judicial power and authority.
The Articles of War provide for three types of courts-martial — summary, special, and general. The summary court, which tries the mildest offenses, is composed of only one officer. It can impose sentences of confinement not in excess of one month, or restriction to certain limits (such as post boundaries) for not more than three months, or forfeiture of not more than two-thirds of one month’s pay. Next in the hierarchy is the special court, composed of not fewer than three officers. It can adjudge confinement not in excess of three months, or forfeiture of not more than two-thirds pay for a period not in excess of six months.
The highest tribunal is the general court, having within its jurisdiction all the more serious offenses triable by military courts. It is composed of not fewer than five officers — usually seven or eight — and its power to impose sentence, within the table of maximum punishments and provisions of the articles, is unlimited.
Members of courts-martial and the officers assigned as trial judge advocate (the prosecutor, who sometimes occupies the anomalous position of adviser to the court) and the defense counsel, for the most part, are officers of the line branches. Officers of the Judge Advocate General’s Department, all of whom are trained lawyers, generally perform their functions outside the courtroom, but if such an officer is available he usually is detailed as “law member” of the court. If a J.A.G. officer is not available, the trial may be conducted by men whose knowledge of law, in the civilian sense, has been gained from the Manual for Courts-Martial. Sixty pages of the Manual are devoted to forms for the guidance of the court.
While an accused soldier does well to coöperate with the officer or officers assigned to defend him, he is not bound to accept such counsel. He may choose his own counsel from among officers in his unit, or, if he is fortunate enough to have the money, he may retain a civilian lawyer. Military defense counsel is under oath to exert every effort in behalf of the accused, but Army officers admit that such counsel, if he is lackadaisical or incompetent, may damage his client’s case. Yet a bombastic trial lawyer, unfamiliar with reserved court-martial procedure, probably would do worse.
As an illustration of court-martial routine, consider the case of a soldier who has been apprehended after desertion. In wartime this offense customarily is tried by a general court. After charges are preferred under oath by an accuser — usually the company commander — it is obligatory that the charges be investigated “with impartiality” by another officer. The Army views this practice as roughly equivalent to a grand jury investigation in civil procedure.
The investigating officer may recommend either trial or dismissal of the charges. If he recommends trial, the officer with authority to convene general courts-martial for the command must then refer the case to his staff judge advocate for advice. If the staff J.A. is of the opinion that the charges are in proper form and the evidence presented at the investigation sufficient to warrant trial, the commander convenes the court and the accused goes on trial. If the accused is found innocent, the matter is closed. If he is found guilty, the court fixes sentence.
Before the sentence becomes effective, however, it must be approved by the “reviewing authority”; that is, by the commander who appointed the court (or his successor), and then only after he has consulted with his staff J.A. as to the legality of the finding and the justness of the sentence. Critics of military courts insist, on this point, that too much is left to the discretion of the staff J.A., and that the final result is simply a reflection of his will and judgment. It is like pouring water down a funnel, say the critics: how can the staff J.A. be expected to report evidence he himself sifted?
The Army rebuttal is that the deserter’s case does not end with sentencing. His trial record, like those of all general courts-martial, is forwarded to the Judge Advocate General’s Department in Washington. Two officers in the Military Justice Division of the office examine the record for flaws, and if they find none prejudicial to the rights of the accused, the court’s decision stands. On the other hand, if they should entertain doubt as to the legal sufficiency of the finding and sentence, or if the case involves a grave crime, it is checked by a three-man board of review. This board, after viewing the case abstractly, may toss it out, reduce the sentence, or affirm the court’s decision. In any event, the action of the board is tantamount to a Supreme Court decision, and may be altered only by the J.A.G., the Under Secretary of War, the Secretary of War, or the President.
Bail and habeas corpus, per se, are alien to the khaki code. At the time charges are preferred against a soldier, whether enlisted man, noncom, or commissioned officer, the commander decides whether his liberty shall be restrained pending trial. He may be placed in “confinement” — that is, the guardhouse; he may be placed in “arrest,” a moral restraint not to go beyond certain limits; or he may be left at liberty. Although it is to the advantage of the accused that he must be brought to trial within thirteen days after arrest or confinement, he will, even though convicted unfairly, be treated as guilty for as long as it requires higher authority to perceive the injustice.
2
UNFORTUISTATELY, the general public displays lethargic interest in courts-martial until some peculiarly sensational case crops up. The press may have access to any court-martial unless excluded for cause by the presiding officer; but actually, in either peacetime or wartime, the press seldom gets an inkling of a trial in which it might be interested. A case in point occurred in December, 1917, when seventeen Negro soldiers were hanged simultaneously at Fort Sam Houston, Texas, for engaging in a riot against civilian policemen. Although this was news of considerable magnitude, the public did not learn of it until after the war. It is quite possible that the press, in failing to pry into such cases, is guilty of a gross lack of enterprise, but it is also true that the Army conceals the facts.
A trial record is available to the press only if the accused, who by Army law must be supplied with a copy, wishes to release it; the J.A.G.’s office holds that its transcripts are not privileged, although those of civil courts are. This attitude subjects the J.A.G.’s office to the same criticism that may be leveled at all departmental rulings, as opposed to judicial findings: rarely is the public told who analyzes the facts and reaches the conclusions that go out in the name of the responsible head of the department.
Consider the unsavory episode of Colonel William T. Colman. This thirty-nine-year-old commander of Selfridge Field, Michigan, in drunken irresponsibility and without provocation, shot and wounded his Negro chauffeur, Private Willie McRea, of Morven, North Carolina. The following day, May 6, 1943, he was relieved of his command. On September 14, eight colonels and a lieutenant colonel sitting on a general court convicted Colonel Colman of “careless use of firearms" and four counts of drunkenness, but acquitted him of other charges, including misappropriation of government property and using his influence to obtain the illegal transfer of soldiers to his base.
The sentence was the pay-off. The court ordered Colonel Colman reduced in rank to a captaincy, placed at the foot of the Captains list, and withheld from promotion for three years. An outraged public, mindful that a civilian in a similar situation would be punished by something more than loss of face, deluged the War Department with telegrams of protest and demands that Colman be cashiered. Finally, on November 9, the press associations reported without amplification that the War Department (not Secretary of War Henry L. Stimson or any other individual) had announced that Colman was being “ retired.”
Another case which served to give the courtmartial system a black eye in public esteem was that of Private John Hubinyak, a twenty-six-year-old coal miner from Central City, Pennsylvania. As a draftee in the summer of 1941 at Fort Bragg, North Carolina, Private Hubinyak was sentenced to ten years in prison on insubordination charges. The sentence was condemned on the floor of Congress, and eventually Under Secretary of War Robert P. Patterson, acting on recommendation of an unidentified board of review, reduced the sentence to three years.
In a recent discussion of the Hubinyak case, an Army officer pointed out that the public must bear in mind that “many soldiers would be glad to remain in prison during the war to avoid fighting. . . . The sentence must be for a longer period than the war is likely to last if it is to be a punishment and a deterrent.” To this should be added the words of Major General Allen W. Gullion, who as Judge Advocate General in September, 1941, told the American Bar Association: —
“But should we go to war there will be instances where severe sentences may be adjudged for purely military offenses. ... If such sentences after review and final action still seem severe I trust the country will realize that in the considered judgment of humane and sympathetic men the sentences were measured by the damage to military discipline and efficiency and to the safety of the country, and were regarded as necessary.”
In the same address General Gullion elucidated the Army’s theory that punishment should be imposed as a deterrent, rather than as retribution or with an eye to reformation. Various ideological blocs, notably organized labor, have found it difficult to accept this theory. For instance, there was the case of Sergeant Alton I. Levy, of the Bronx, formerly an organizer for the A. F. of L. International Ladies’ Garment Workers Union. Convicted on August 16, 1943, at the Lincoln (Nebraska) Army Air Base on charges that he had spread slanderous rumors about the company commander and the latter’s wife, Sergeant Levy was sentenced to reduction to private, confinement at hard labor for four months, and forfeiture of $18 a month for the same period. Labor and allied groups rallied to Levy’s defense, charging that he had been convicted on debatable evidence and that it was his protests against alleged Jim Crow restrictions on the post which actually brought about his trial.
Demands for the name of Levy’s accuser remain unanswered by the War Department, leading some of Levy’s more vehement champions to wonder aloud if it is not true that many rank-and-file soldiers are quietly “railroaded” because they have no outside organizations on which to call for succor. This suggestion, naturally, brings indignant denials from the War Department, which insists that in the vast majority of cases the accused receives punishment which is deserved.
On the heels of the Levy case, which commanded relatively little attention from the press, came one that hit the front pages, and was facetiously dubbed l’affaire Patton. Lieutenant General George S. Patton, Jr., beyond all question, struck a hospitalized and shell-shocked soldier (perhaps two) during the campaign in Sicily. The spectacle took place in an evacuation hospital at Sant’ Agata di Militello, commanded by a colonel identified thus far only as a resident of General Patton’s home town. It was this colonel, according to one account, who restrained the nurse who would have leaped upon the impetuous general. Whether this colonel made an official report of the incident is not certain. One newspaper correspondent, checking with General Dwight D. Eisenhower, was told that General Eisenhower knew of Patton’s rash act and had “taken the hide off him.” Another correspondent wrote that Eisenhower had not heard of the episode until newsmen called it to his attention.
It is hard to judge to what extent the strategy of the Mediterranean campaign made necessary the suppression of the story and dictated the disposition of the case. We are told that General Patton apologized to the soldier, to those who witnessed the cuffing, and to the entire Seventh Army. But there is the inescapable fact that General Patton’s service record is without blemish because official channels apparently were by-passed.
3
THOSE who believe General Patton should have been court-martialed will be surprised to learn that in not one of the forty-three punitive Articles of War is it specifically made an offense for an officer to assault a subordinate. It is true, of course, that he could have been made to answer to A. W. 95, which decrees that “any officer or cadet who is convicted of conduct unbecoming an officer and a gentleman shall be dismissed from the service.”
A. W. 95 has been interpreted to cover many things, such as failure to pay debts, moral turpitude, opening another’s letters without authorization, cruel treatment of soldiers, and non-support of family. This was the article invoked in 1926 against the late Brigadier General William (Billy) Mitchell of the Army Air Service, as the Army Air Force was known before its tremendous expansion. The court held that General Mitchell’s blunt-spoken championship of air power, contrary to General Staff policy in those halcyon pre-Pearl Harbor days, constituted conduct unbecoming to an officer, and ordered him suspended from the service for five years. No equivoeator, Mitchell promptly resigned. (General Douglas MacArthur, who was later to cry out futilely for more planes on Bataan, was a member of that court.)
The trial judge advocate in the proceedings against General Mitchell was the officer who later became Judge Advocate General, Major General Gullion. General Gullion, a native of Kentucky, held the position from December, 1937, to December, 1941, when President Roosevelt nominated him Provost Marshal General. He was succeeded by the present Judge Advocate General, Major General Myron C. Cramer, of Tacoma, Washington. General Cramer, who was born in Connecticut in 1881 and was graduated from Harvard Law School in 1907, had served as an assistant professor of law at the United States Military Academy, as staff judge advocate of the Philippine Department, and as chief of the Contracts Section of the J.A.G.’s office.
Perhaps the most dramatic military trial since General Cramer took office was that of the eight Nazi saboteurs who were landed on the East Coast from U-boats in the summer of 1942. General Cramer and Attorney General Francis Biddle prosecuted Hitler’s agents before a military commission of seven generals (a military commission differs principally from a court-martial in that it ordinarily is formed to try civilians), with the result that six of the defendants were electrocuted, one received a sentence of life imprisonment, and one got thirty years. They were defended by two United States Army officers, Colonels Cassius M. Dowell and Kenneth Royall.
For good reason, this trial was conducted behind guarded doors, and Secretary Stimson ordained that the trial record be sealed until after victory. There can be no legitimate excuse, however, for star-chamber proceedings at the proposed court-martial of Major General Walter C. Short and Rear Admiral Husband E. Kimmel on formal charges of dereliction of duty in the Pearl Harbor catastrophe. Indeed, they have indicated that they want the full story laid before the public; but just when the trial will be held is a matter of conjecture. Washington observers believe that it may be postponed for many additional months, if not until after the war.
Undoubtedly, the tales which will be told by soldiers after the war will bring the court-martial system under close scrutiny by the public. This was true when troops returned from World War I with yarns of incredibly harsh punishments imposed by courts-martial. Many were probably fictitious, but others were corroborated by Brigadier General Samuel T. Ansell, now retired, who had been Acting Judge Advocate General during part of the war. In February, 1919, testifying before the Senate Military Affairs Committee, General Ansell branded the system as “gross, terrible injustice.”
He cited such examples as that of the soldier who went absent without leave for five months to remain at the bedside of his dying father. The day after his father’s funeral the soldier reported back for duty. He was tried and sentenced to death. In another instance, a private was sentenced to forty years’ imprisonment for smoking at his post. On his own authority, without the knowledge of Secretary of War Newton D. Baker, General Ansell had reduced or set aside such Gilbert and Sullivan conceptions of justice.
Many Army officers, particularly those who had returned to civil life, joined in the barrage of criticism from press and pulpit. The uproar subsided only after Congress, in 1920, enacted several amendments to the Articles of War as recommended by a special War Department board of investigation. Of greatest significance was the creation of A. W. 50 1/2, setting up the system of automatic review. While this helped to quiet those persons who demanded the establishment of a civilian court of appeals to which an accused soldier could petition for redress, some critics still believe such a civilian court is desirable.
Members of the Judge Advocate General’s Department, who are distinguishable by their crossed pen-and-sword insignia, hail A. W. 37 as the most intelligent piece of legislation to be found in any criminal code. Under this article, the proceedings of a court-martial may not be held invalid on the ground of improper evidence or rejection of evidence or for any error in pleading or procedure unless the reviewing authority finds that “the error complained of has injuriously affected the substantial rights of an accused.” This, say the members of the Department, allows reason and common sense to prevail over the fine technicalities often resorted to by lawyers and judges in criminal courts.
An unorthodox procedure, by civilian gauge, occurs when members of a court-martial retire to discuss findings and sentence. Unanimity is required for conviction only on a charge for which the death penalty is mandatory, and there is but one such — spying. For all other convictions a two-thirds vote is sufficient, while any vote less than this is a finding of not guilty. In sentencing, a unanimous vote is required only in imposing a death penalty; concurrence of three fourths is required for imprisonment for life or for more than ten years, and two thirds for any other sentence.
The voting is by secret ballot, and each officer is under oath not to disclose his vote. This scheme, according to the Army, insures against the traditional deference to rank. It is fraternal knowledge, however, that it is the junior officer, not the veteran, who is most inclined to “throw the book” at the culprit.
Obviously there is less protection for the accused under the fractional vote than for a civilian before a trial jury whose twelve members must concur for conviction. But, on reflection, it will be seen that the two-thirds vote is as fair to the innocent as to the guilty. It also has the advantage of eliminating that frequent phenomenon of civil trials, the hung jury, by which criminals who patently are guilty escape punishment. The Army has an axiom: “A guilty man dreads facing a court-martial, but the innocent man would rather face it than a civilian court.”
4
STUDY of the Manual for Courts-Martial shows that maximum punishments in the Army for crimes denounced by the United States Criminal Code correspond generally with the maxima in that code. Punishment for purely military derelictions is another matter. Since the office of the Judge Advocate General has no statistics on the average punishments for military offenses, the only guide is the table of maximum punishments, of which some provisions have been suspended by the President.
In peacetime, a deserter who gave himself up after an absence of more than sixty days was liable to dishonorable discharge and confinement at hard labor for a year, during which time he would forfeit all pay. Now A. W. 58 is in effect without limitation, and it provides: “Any person subject to military law who deserts or attempts to desert the service of the United States shall, if the offense be committed in time of war, suffer death or such other punishment as a court-martial may direct. . . .”
If a soldier was absent without leave for less than sixty days in peacetime, his punishment was limited to confinement at hard labor for three days, plus suspension of two days’ pay, for each day or fraction thereof that he was absent. This limitation has been suspended by the President, and A. W.61, which covers A.W.O.L.’s, provides that they “shall be punished as a court-martial may direct.”
For willfully disobeying or assaulting his superior officer a soldier may be executed. In the language of A. W. 64: “Any person subject to military law who, on any pretense whatsoever, strikes his superior officer or draws or lifts up any weapon or offers any violence against him, being in the execution of his office, or willfully disobeys any lawful command of his superior officer, shall suffer death or such other punishment as a court-martial may direct.” In peacetime the “ceiling” punishment for willful disobedience was dishonorable discharge, forfeiture of all pay, and confinement at hard labor for five years.
Army statutes also provide that the death penalty may be imposed for failure to suppress mutiny and, if the crimes fall within Army jurisdiction, for murder and rape — the supreme penalty being discretionary at all times. At its discretion in time of war, the Army may exact the death penalty for such other military misdeeds as improper use of the countersign, forcing a safeguard, and being found drunk or asleep on post. Presidential confirmation of all death sentences is mandatory today, as opposed to the Civil War era when Abraham Lincoln heeded a mother’s plea and intervened to save her son from the firing squad.
Political campaigns would be dull but on a higher plane if politicians were restricted by A. W. 62, which prohibits any person subject to military law from uttering contemptuous or disrespectful words against the President, the Vice President, the Secretary of War, and members of Congress. Since the Army is not entirely devoid of humor, this article is probably invoked less than any other. At the other extreme, the article which probably is called into play most often (excepting those covering desertion and A.W.O.L.) is A. W. 96. It covers “all disorders and neglects to the prejudice of good order and military discipline, all conduct of a nature to bring discredit upon the military service, and all crimes or offenses not capital.” Under this catch-all, soldiers have been punished for abusing an animal, gambling, lending money at usurious rates of interest, having a dirty rifle, and such conduct as may be classified under “committing a nuisance.”
If the offense is of a strictly military type, a courtmartial is the only tribunal empowered to try the accused, but in many cases the crime is punishable under the laws of the land, whether it occurred on or off a military reservation. In event of the latter, civilian authorities may exercise jurisdiction only if they can gain the consent of the military.
Concerning jurisdiction, there was the case of Private George Schubert Knapp, of St. Paul, Minnesota, who was hanged in March, 1943, at the Leon Springs (Texas) Military Reservation for the slaying of eight-year-old Lucy Maynard, of Bastrop, Texas. Knapp had been convicted by a military court, although the crime occurred off the post. Had the military court acquitted him, Knapp could not have been tried by civil authorities because the principle that no one may be placed in double jeopardy is mutually respected by military and civil courts. For this reason a court-martial is held immediately if a sentry in performance of his duty shoots a civilian, and an insignificant penalty is imposed. This protects the sentry from any possible vindictive action on the part of civil authorities.
One of the most interesting controversies over jurisdiction came to light in February of this year. In United States District Court in Columbus, Ohio, Judge Mell G. Underwood ruled that merchant seamen serving on vessels operated as a part of an Army supply line are subject to military jurisdiction. He gave the decision in denying a writ of habeas corpus to Jacob N. Berue, of Philadelphia, a merchant seaman confined in the Federal reformatory at Chillicothe, Ohio. Berue had been sentenced to seven years at hard labor (later cut to two years) by an Army court-martial at Casablanca, Algiers, on a charge of striking the civilian master of his ship. The circumstances, Judge Underwood decided, placed the case under military law rather than maritime law. The National Maritime Union announced that it would appeal, to prevent “about 150,000 merchant seamen from finding themselves in the Army without knowing they were in the Army.”
State attorneys usually are amazed to learn of the high percentage of convictions by courts-martial. In 1940, for instance, there were 1851 general courtsmartial with only 75 acquittals. Critics cite such statistics in support of the “funneling” charge, but the Army extols them as evidence of the efficiency of the preliminary investigation in eliminating the innocent. Of the 1776 convicted by general courts in 1940, 1684 received sentences of confinement averaging 12.88 months. In the same year there were 4406 special courts-martial, with 4185 convictions, and 10,134 summary courts-martial, with 9993 convictions. Of the seventeen officers tried that year, two were found not guilty.
In the decade preceding the peacetime draft there was an encouraging decline in the rate of courtsmartial. Honors for this decline must be bestowed upon General Gullion. Disregarding precedent, he constantly reminded company commanders that they, by relying upon A. W. 104 providing for summary discipline, could control their men without preferring charges, except in rare cases. Ready resort to courts-martial, he stressed, “too often means laziness or inefficiency on the part of the company commander.”
General Cramer, no less liberal than General Gullion, has demonstrated that he, too, has no qualms about departing from the “spit and polish” tradition. Last year, enlarging upon practices at the disciplinary barracks such as those at Fort Leavenworth and Alcatraz, General Cramer caused “rehabilitation centers” to be set up in each of the nine Service Commands. At these centers training programs combining hard work and modern psychological methods have been substituted for the usual penal procedures.
The Army avowedly will continue dealing out commensurate sentences for capital and major crimes. But any soldier convicted of insubordination, going A.W.O.L., desertion, sleeping on post, or other military breaches, if there are extenuating circumstances, will receive an opportunity to clear his record at a rehabilitation center.
This 1944 application of khaki justice — by which the Army already has reclaimed thousands of men who otherwise would be languishing in stockades — should prove that oft-expressed commentary of battle-wise veterans: “The bad boy on the post often makes the fight ingest soldier at the front.”